Comments on: Oral Arguments in Pottawattamie

By: John Stanley

John Stanley — Tue, 10 Nov 2009 01:20:50 +0000

The use of section 1983 history was a very good move. Scalia will tear up years of prior case law; if it can be shown there are no grounds for the prior rulings. (See the Crawford opinion of 2004 dealing with hearsay and the Ring ruling dealing with the power of a jury in finding of facts)
The fact the argument of the prosecutors attorney is out on the internet, may help the victims. On the heels of the Duke Rape case, the court would look awful taking the stand of “We don’t care what happened before, or at trial, we do not want a prosecutor to be “chilled”.”
This would be funny, except it is so sad, for the fact men are sent off to the “cooler” due to the actions of the prosecutors, who are not “chilled”.

By: Salvo

Salvo — Mon, 09 Nov 2009 22:55:54 +0000

Your summary of the oral arguments gives me hope this is going to go the right way. My count, based on the questions you summarized is Sotomayor, Kennedy for sure, Ginsburg almost certainly (she’s pretty good on these issues), Stevens probably. That’s 4 right there. Breyer is a toss up–while he’s in the liberal wing, he’s also a former prosecutor. I say Alito and Roberts are lost causes, based on the questions. Scalia, I think may be a toss up as well. Thomas, I don’t have much hope for, but you never know. So, 4-2, with 3 unknowns, 2 of which (Breyer and Scalia) could reasonably come down on the right side.

This is sounding better.

By: Michael Chaney

Michael Chaney — Mon, 09 Nov 2009 22:27:42 +0000

An originalist may believe that the Constitution protects us from government overreach, but it doesn’t explicitly lay out a method of recovering damages for government violations of our rights; that’s left up to Congress.

And yet in more than 220 years they have failed to do just that. I’ve been harping on this for some time, but it’s clear that there’s no reason for state actors to obey the Constitution because there is no punishment for “breaking” it. The closest that we’ve come is the exclusionary rule, which does absolutely nothing to punish a prosecutor.

The Nifong case really brought this out into the open. In that instance, a prosecutor made up a case from whole cloth and tried to convict three innocents based on fraudulent “evidence” and testimony. And yet there was no crime committed. Houston, we have a problem.

We need to come up with statutory criminal and civil penalties for breaking the Bill of Rights. A corrupt prosecutor can illegally collect evidence, and that evidence will be thrown out (we’ll keep the exclusionary rule). Unfortunately, he’ll also be charged with a 4th amendment violation and be exposed to a civil lawsuit.

I agree with Sotomayor – prosecutors *should* be chilled when coaching witnesses (itself a felony), manufacturing evidence, etc.

Honest people have *nothing* to fear from this. That’s part of why I find it so worrisome that so many prosecutors are freaking out about this – they are knowingly corrupt. Otherwise, they would be arguing on the other side…

By: Bryan

Bryan — Mon, 09 Nov 2009 21:53:08 +0000

Radley, you know what another interesting angle might be for this comparing the disclosure requirements for securities offerings, as interpreted by the SEC, against the requirements for prosecutors in criminal cases. The SEC often holds (or seeks to hold) individuals accountable for material misrepresentations in offering documents. I am curious whether the government has a higher reporting obligation for those offering securities to investors (where there is only a financial interest at stake) than it does for prosecutors bringing criminal charges (where there is a liberty interest at stake). At least, that is what struck me in your discussion about requiring prosecutor to vet the information they have more carefully.